Burnham v. Plant
Supreme Court of New Hampshire
From Grafton Circuit Court. Trespass, quare clausum, for breaking and entering lot No. 7, in Range 5, in Littleton, and carrrying away wood and timber, &c. The plaintiff asked leave to amend by filing a new count in trespass de bonis, for taking and carrying away the wood and timber described in the original declaration. Amendment allowed subject to the defendant’s exception, and the questions of law arising thereon were transferred to this court by Foster, O. J., C. C.
1Concurrence
In trespass qu. cl. the gist of the action is the disturbance of the possession. If the entry is illegal, a cause of action at once arises. After the breaking and entering, whatever else is done is only in aggravation of damages. Brown v. Manter, 22 N.H. 468. So if the plaintiff alleges a breaking and entering and cutting down his trees, and fails to prove the cutting, he may still recover for the unlawful entry. Ib. And if the entry is justified, the action fails. Anderson v. Nesmith, 7 N.H. 167; Great Falls Co. v. Worster, 15 N.H. 416. A count in trespass de bonis asportatis may be joined…
2Cases cited3 opinions
- Anderson v. NesmithSuperior Court of New Hampshire · 1834
- Brown v. ManterSuperior Court of New Hampshire · 1851
- Cahill v. TerrioSupreme Court of New Hampshire · 1875